Court Faces Emotional Questions

October 6, 1991|By J. Craig Crawford, Sentinel Washington Bureau

WASHINGTON — The Supreme Court will go back to work Monday with an agenda of cases that challenge individual rights on hot-button issues ranging from prayer in school to freedom of speech for criminals.

Other emotional issues likely to emerge during the court's 1991-92 term include abortion-clinic blockades, segregated colleges, abused children, hate crimes and cigarette smoking.

''This is an awfully aggressive court,'' Duke University law professor Walter Dellinger said.

The last of the court's old-line protectors of individual rights, Thurgood Marshall, officially stepped down last week. His expected successor, Clarence Thomas, will face a Senate confirmation vote Tuesday.

With its ideological left wing clipped by Republican presidents - Justice Byron White is the only remaining Democratic appointee - the court's right wing controls not only the agenda but often the outcome of cases.

During its 1990-91 term, which ended in June, the court's conservative majority won victories in cases that gave local, state and federal governments a wide range of new powers over individuals, from banning nude dancing to prohibiting abortion advice by doctors at publicly financed clinics.

The new court is expected to agree later this term to consider at least one of six cases that would directly challenge Roe vs. Wade, the 1973 decision that legalized abortions.

''The court today recognizes that the interests of society as a whole cannot be overlooked when we begin paying attention to rights,'' said Richard Samp, an attorney for the Washington Legal Foundation, a conservative think tank.

New York University Law School Professor Richard Sherwin takes the opposite view: ''The passions of the majority - fueled by fears of drug abuse and criminality - rule without principled restraint.''

Led by Chief Justice William Rehnquist, the court is now dominated by ''majoritarianism,'' the belief that judges should favor the community interest - as expressed by elected officials - over individuals outside the mainstream.

In the majority opinion last term allowing state and local government to outlaw nude dancing, Rehnquist wrote that a dancer's First Amendment freedom of expression was ''outweighed by the substantial governmental interest in protecting order and morality.''

In the very choosing of which cases to consider, the court's majoritarians can set the stage for overturning controversial lower-court decisions that favored individual rights.

In a challenge to a convict's freedom of speech, the court will decide if New York state can force those who write books about their crimes to hand over the proceeds to their victims.

''The law doesn't stop speech,'' said lawyer Alan Slobodin, who has written a friend-of-the-court brief defending the New York law. ''The question is who should keep the money when it results from this kind of speech.''

In another case testing majority demands, the court will re-evaluate one of its least popular precedents: the ban against prayer in public school.

The parents of a Rhode Island student sued school officials for allowing a non-denominational prayer at graduation ceremonies. A lower court held that the prayer violated the First Amendment prohibition against the establishment of religion by government.

''This is the case that could change the future of church and state relations, possibly eroding much of the separation between the two,'' said Jesse Choper, dean of the University of California Law School at Berkeley.

The outcome of the prayer case could also reveal that the court's majoritarians are not in lock step. Two camps are seeking control of the bench - one group bent on fundamental changes in constitutional law, the other predisposed to incremental adjustments. They have often divided on religion cases.

The ''incrementalists'' are symbolized by Justice Sandra Day O'Connor's determination to confine rulings to the cases at hand. She dislikes sweeping majority opinions that alter the rules of constitutional analysis.

In a narrowly decided case last year regarding religious freedom, for instance, O'Connor opposed the extent - though not the outcome - of the majority's decision to weaken the standards that government officials must meet when their decisions affect religious practices.

In the 5-4 ruling written by Justice Antonin Scalia, the court permitted the state of Oregon to deny unemployment benefits to two American Indians who were fired because they had used a sacramental drug called peyote. O'Connor agreed with the denial of benefits but argued against liberalizing the rules that government must follow in future cases.

Such power struggles among the majoritarian justices overshadowed Marshall, the outgoing liberal, and court moderates such as Justices Harry Blackmun and John Paul Stevens.